Special suits

1. Suits by or against government

2. Suits by indigen person
3. Interpleader suit
4. Suits relating to public nuisance.
5. Suits by or against minors
Suits by or against government
Suits by or against the government or public officials in their official capacity is a type of special
case in the code of civil procedure. Such suits are of a special type because the procedures which
need to be followed in the institution of the plaint are different from the procedures which are to
be followed in the civil suits which consist of private parties. For filing a suit against the
government or public official, the plaintiff needs to first serve a legal notice to the public officer
or to the Secretary to the Government.

After the service, the plaintiff needs to wait or two months to file the plaint in the Court. A lot of
formalities and procedures need to be taken care of to file the suit. However, in certain situations,
the Court may grant an exception, but it depends upon the facts and circumstances of the case.
Analysis of the Provisions of Law
Sections 79-82 and Order 27 of the Code of Civil Procedure, 1908, deal with the procedure
which needs to be followed in the process of filing a suit against the government or public
officials. The Code of civil procedures prescribes only the procedures. The rights and liabilities
of the parties are dealt by the Constitution of India, 1950.
Section 79- This Section defines the concept of suits by or against the government: Whenever a
case is filed against a government or if it is filed by the government, the plaintiff and the
defendant who will be named in the case will be as provided under:
 Whenever the case is instituted by or against the central government, the Union of India
will be represented as the required plaintiff or defendant respectively.
 Whenever the suit is filed by or against the state government, the state government will
be required to act as the plaintiff or the defendant.
Section 79 lays down the procedure and mode of procedure whereby the suits are brought by or
against the government but at the same time, it does not deal with the rights and liabilities
enforceable by or against the government body.
Suit against Railway
If the railway is administered by the union of India or a State, then any suit to enforce a claim
against railway administration can be brought against the Union of India or State, and this may
not include making the railway administration a part of the suit. But on the other hand whenever
there is a requirement for a suit for freight for carrying goods, then such a suit can be instituted
against the railway administration, and this was held in the landmark case of Union of India v.
RC Jall.
Section 80

The first step in the process of filing of suit in this case is service of notice to the
defendant. Section 80 of the Code of Civil Procedure, 1908 states that only after the expiry of
two months from the date of service of notice to the government officials, a plaint can be filed in
the Court of law. The same rule is applicable in the state of J &K.
In the case where the defendant is the Central Government the notice should be served to the
Secretary to the Government, in case the defendant is the Railways the General Manager, in case
of State Government the Secretary to that Government or to the Collector of the District, in case
of public officer the notice should be served to him.
The main intention of the Legislative in the insertion of this section and adding this process in
the filing of suit is to make sure that the Government or the Public Officer knows the reasons,
demands or the concern of the Plaintiff for which the suit shall be instituted. By knowing the
distress of the Plaintiff, the Public official can act upon it and rectify the situation. The time
period of two months is also provided for the same reason. This shall not only save the time of
the Court, but also of the government and the unnecessary legal expenses.
In the case of State of Madras v. C.P. Agency the Court had also given this reasoning as well as
the Supreme Court supported this by giving its own analysis in the case of Bihari Chowdhary v.
State of Bihar as mentioned above.
Section 80 of the Code of Civil Procedure, 1908 also states the contents of the notice which
should be served to the government of the public official. The most essential contents of the
notice should have the name, description, place of residence of the plaintiff and the cause of
action and the relief sought. The service of the notice should be delivered to the office of the
concerned person or served directly to him.

After the expiry of two months if the aggrieved party wishes to file the suit in the Court of law,
he or she would need to produce a written statement which should state the way in which the
notice was served. The service of the notice has a strict application and is mandatory process. It
should be done expressly and not impliedly. The Supreme Court had held so in the case of State
of A.P. v. Gundugola Venkata and expressed that if proper service of the notice does not happen
then the suit would entail a dismissal.
Section 80(2) of the Code of Civil Procedure, 1970 allows private individuals to file a suit
against the government without serving the notice to the public officer if the matter is of an
urgent nature. This section acts as an exception for sub-section 1 of Section 80 of the Act. The
main objective of inserting this exception is to make sure that miscarriage of justice does not
happen in urgent cases by delay in the proceedings. The urgency of the matter is judged by the
Court by considering the facts and circumstances.
After filing of suit against the government, the plaint and the written statement should be signed
by a person appointed by the government.
Waiver of Notice
As the requirement of the notice is just procedural and not substantive, and as it is for the benefit
of the public officer or the government, it is open to government and public officers to waive it.
If the defendant wants to rely on the invalidity of the notice, it is for him to raise a specific issue
on the point, this was held in the case of Lalchand v. Union of India.
Order XXVII
1- Suits by or against the government- It should be noted that in any suit by or against the
government, the plaint or the written statement should be signed by such a person, as the
government by general or special order, appoint in this behalf.
Government pleader is an agent under order 27 of CPC. The government pleader acts as an agent
for receiving processes issued against the government. Also he is the only person to intimate the
court that he is representing the government and no stamped power of attorney or vakalatnama is
required for the same
2- Attendance of person being able to answer the questions related to suits against the
government- The court may, in any case where government pleader is not accompanied by
person on the part of the government and if he is able to answer the questions relating to suit, the
court may direct the attendance of that person.
Suits by indigent person
An indigent person means any person who fulfills the conditions provided under Order 33 Rule
1 which is as follows:-
1. Any person who has no means to pay the Court fees prescribed by the law for the plaint in
suit; and,
2. He has not entitled to any property worth 1000 rupees where no fees is prescribed.
Object
Order 33 provides the provisions which are intended to enable an indigent person to institute and
prosecute suits without payment of the court fees.
Under this Order, the person is exempted from paying the court fee at the first instant and allow
him to prosecute his suit provided certain conditions laid down in this order 33 has been enacted
to server triple purpose
I. to protect Bonafide cleans of an indigent person.
II. to safeguard the interest of revenue and
III. to protect the defendant from harassment.
Rejection of application rule 5:-

In the following cases an application for permission to show as an indigent person will be
rejected by the court:-
1. if the application is not framed and presented prescribed manner; or
2. if the applicant is not an indigent person; or
3. if the applicant has disposed of any property fraudulently in order to get permission to sue as
an indigent person within two months before the presentation of the application; or
4. if there is no cause of action; or
5. if the suit appears to be barred by law
7. if any other person has entered into an agreement with the applicant to finance costs of
litigation.
Inquiry- Rule 1A
According to Rule 1, at the first stage, an inquiry into the means of the applicant should be made
by the Chief Ministerial Officer of the court. The court may adopt report submitted by such
officer or may itself make an inquiry.
Revocation of permission: Rule 9: -
The court may revoke permission granted to the plaintiff to sue as an indigent person in the
following cases: -
1. If he is guilty of vexatious or improper conduct in the course of the suit; or
2. If his means are such that he ought not to continue to sue as an indigent person; or
3. If he has entered into an agreement on which another person has obtained an interest
in the subject matter of the suit.
Set off and Counterclaim:-
An indigent person may also plead set off or file counterclaim without paying Court fees.
Who may file an appeal (Order 44 Rule 1):-
Order 44 Rule 1 says that if any person entitled to prefer an appeal, who is unable to pay Court
fees required for Memorandum of appeal, may present an application accompanied by a
memorandum of appeal, and may be allowed to appeal as an indigent person.
Order 44 rule 2 Grant of time for payment of Court-fee:-
Where an application is rejected under Rule 1 does not mean that the Memorandum of appeal
also rejected. Here it only means that the court is not satisfied with the claim of the applicant that
he is an indigent person and nothing more. Rule 2 empowers the court to grant the time to the
applicant for payment of the court fees within such time as may be fixed by the court or extended
by it from time to time.
Limitation:-
The period of limitation for presenting an application for leave to appeal as an indigent person to
High Court is 60 days and to other court is 30 days. The limitation starts from the date of the
decree appealed from.
Interpleader suits: Section 88 and Order 35 of the CPC
Generally, ordinary suits that are filed before the Hon’ble court are between two parties, the
plaintiff and the defendant. But the interpleader suit is unlike the ordinary suits between the two
defendants who fight for a claim over a particular good, debt, or chattel. The plaintiff in such
suits usually do not have any real interest in the subject matter of the suit and institute the suit to
only make sure that the property in dispute is put in the custody of the actual owner.
Conditions: section 88:-
For filing an interpleader suit there must be satisfying the following conditions:-
1. There must be some debt, sum f money or other property movable or immovable in dispute;
2. Two or more persons must be claiming it adversely to one another;
3. The plaintiff does not claim any interest in it except the charges, or cost and is ready to pay
or deliver it to the right claimant;
4. There must not be pending suit in which the right of the rival claimants can be properly
adjudicated.
Procedure laid down by order 35 of CPC:
Order 35 laid down following condition which shall be satisfied by the plaintiff who seeks to file
an interpleader suit;
1. The plaintiff shall state that he has no interest in the subject matter in dispute other than the
charges or costs;
2. The claim made by the defendants severally; and
3. There is no collusion between the plaintiff and any of the defendants.
In the case of Mangal Bhikaji Nagpase v. State of Maharashtra in1997 the BombayHigh
Court held that it is mandatory for the plaintiff to affirm that he has no interest in the subject
matter of the dispute other than costs and charges.
During the pendency of the interpleader suit, if any of the defendants filed a suit against the
Plaintiff, then that suit shall be stayed under sec. 10 of CPC Res Sub-judice.
Liability of the plaintiff:-
At the first hearing of the interpleader suit the court may declare that the plaintiff is discharged
from all liability, and award him his costs and dismiss him from the suit, unless the justice or
convenience so requires his presence.
Examples:-
A is in possession of the property claimed by B and C adversely. A does not claim any interest in
the property and is ready to deliver it to the rightful owner he can file an interpleader suit.

Suit relating to the Public Nuisance under Sec. 91 of the CPC

Meaning of Public Nuisance:-
The term public nuisance has not been defined in the Code
of Civil Procedure. However, according to the section 268 of IPC, it can be said to be an act,
omission which cause common injury, danger or annoyance to the public or to the people in
general who dwell or occupy property in the vicinity or which must necessarily cause injury,
obstruction, danger or annoyance to the persons who may have occasion to use public rights.
There are some examples of public nuisance like; pollution of public waterways, the
noise of loudspeakers, obstruction of a public highway, ringing of a day and night, unnecessarily
hooking of the horns, etc.
Who may sue?:-
A suit may be instituted by the following persons, relating to a public nuisance or other wrongful
act;
1. By Advocate General;
2. By two or more persons with the leave of the court; or
3. By any private person if he has sustained special damage.

What are the remedies?:-

There are some remedies which are available against public nuisance as follows:-
1. A person committing a public nuisance may be punished under section 290 of the Indian
Penal Code;
2. Magistrates may remove public nuisance in certain case circumstances by exercising
summary power under section 133 and 143 CRPC;
3. A suit can be instituted for the declaration, injunction or other appropriate relief without
proof of separation damage under section 91(1) CPC.
4. A suit may also be filed by a private individual, where he has sustained special damages
under section 91 (1) CPC.
Suit by or against a minor or person of unsound mind
Introduction:
Order XXXII of the Code of Civil Procedure, 1908 deals with SUITS BY OR AGAINST
MINORS AND PERSONS OF UNSOUND MIND. Order XXXII contains special provisions
applicable only in cases where either the suit is:
i. To be instituted at the cause of a minor/person of unsound mind
ii. To be instituted against a minor/person of unsound mind
A minor is, for purposes of civil litigation in India, defined to mean a person who has not
attained majority under the provisions of the Indian Majority Act, 1875, that is a person who has
not completed the age of eighteen years and in the case of a minor of whose person or property a
guardian has been appointed by a court, or whose property is under a court of wards, a person
who has not attained the age of 21 years.
Similarly, a person of unsound mind is a person who is declared after competent examination to
be unable to understand the nature and consequence of his actions due to the presence of a
mental disease or infirmity.
Concept of Next Friend/ Guardian:
The object behind having a next friend or guardian ad litem is that a minor is deemed to be
incapable of defending himself and therefore it is imperative that his interests in the suits should
be supervised by an adult person. This person, in case the minor is a plaintiff, is to be called the
next friend and when the minor is a defendant, is called a guardian ad litem or guardian for the
suit. However, neither the next friend nor guardian ad litem is a party to the suit.
Who can be appointed as Next Friend/Guardian:
Any person who has attained majority and is of sound mind, may act as a guardian or next friend,
provided his interest is not adverse to that of minor, who is not the opposite party in the suit and
who gives consent in writing to act as a guardian or next friend. In the absence of a guardian who
is fit and willing person to act as a guardian, the court may appoint any of its officers as guardian
in that particular suit.
In order to safeguard the interest of the minor by way of Rules 6 and 7 of Order XXXII, without
the leave of the court, no guardian or next friend can:
 Receive any amount or movable property on behalf of the minor
 Enter into any agreement on behalf of the minor
 Reach any sort of compromise in the suit on behalf of the minor
Duty to Act in Best Interest of Minor:
As stated in rule 4 any person complying with the qualifications under Rule 4 may become
guardian or next friend. The guardian or next friend however, must ensure that he acts in best
interests of the minor or unsound person. A guardian must ensure that the discretionary powers
exercised by him in his capacity as guardian including the employment/dismissal of legal
counsel etc. must be in the best interests of the minor and not to advance his own cause or
interests.
However, in certain cases it may be allowed for the guardian and the minor to have common
interest in the suit. As in the case of Ranganathan Chettiar v. Perrkarriappa Chettiar where
the mother was allowed to bring a suit concerning certain properties to be inherited by her and
her minor son which had been wrongfully claimed by the brother of the deceased husband.
Retirement, removal or death of guardian/next friend - A next friend or guardian who wishes
to retire must first procure a fit person to substitute him and give security for costs already
incurred by him.
The court may also remove a particular guardian or next friend if the court is satisfied that
either:
a. His interest is adverse to that of the minor in the concerned case
b. He is in such a standing as to be capable of colluding with the opposite party or is closely
connected to the opposite party
c. He does not discharge his duty to the satisfaction of the court
d. He ceases to stay in India during the pendency of the suit and is therefore unable to look
after the best interests of the minor
e. Any other sufficiently justifiable cause as the court may decide
When Minor attains majority:
When a minor attains majority, he can choose either to proceed with a particular suit or to
abandon it, if he had moved the court through a next friend/guardian.
It is important to mention that Order XXXII does not expressly provide for provisions when a
defendant would attain majority because a defendant cannot terminate the suit.
Application of Order XXXII to persons of unsound mind - Rule 15 of the Code states that the
provisions of Order XXXII (Rules 1 to 14) shall squarely apply to persons of unsound mind as
they do to minor with exception of Rule 2A which relates to the furnishing of certain securities
by guardian.

Summary procedure
Order XXXVII
A summary trial suit is a procedure where courts pass judgment without hearing the defense.
The objective of this provision under CPC is to avoid unnecessarily extending the litigation
process by the defendant in the class of cases where speedy judgments are desirable, which could
help the complainants to save monetary expenses as well.
Applicability and Extent
The Provisions of Order XXXVII of CPC
applies to the following class of courts:
 High Courts,
 City Civil Courts,
 Courts of Small Causes
 Other Courts.
Class of Suits
Order XXXVII applies to the following class of suits Suits pertaining to bills of exchange,
hundies, and promissory notes. Suits where the plaintiff seeks only to recover a debt or liquidated
demand in money payable by the defendant, with or without interest.
Jurisdiction of Summary suits
Suits can be proposed at the following places:
a. Where the Defendant lives
b. Where the defendant works for personal gain
c. The place where the cause of action arises wholly or partly
Based on the pecuniary jurisdiction, the suit can be proposed in the High Court or District Court.
Time Limitation to initiate a Summary Suit
The suit can be proposed within 3 years from the date of cause of action. The period of limitation
cannot be neglected.
The procedure under a Summary suit

a. A summary suit is initiated by presenting the plaint in the appropriate civil court.
b. After the filing of a summary suit, a copy of the plaint and summons must be sent to the
defendant in the recommended format.
c. The defendant will present himself in person or by pleader within 10 days from the order
of summons.
d. The plaintiff shall serve the defendant a summons for judgment if he presents himself
before the court.
 e. The defendant has to file an application for leave to defend within 10 days from the order
of such summons.
f. Leave to defend may be acknowledged by the court unconditionally or with any
conditions, which the court may think to be just and lawful.
g. If a defendant has not made an application for leave or such an application has been
dismissed or if the defendant does not comply with the conditions based on which the
leave was granted, the plaintiff is entitled to judgment forthwith.

Neebha Kapoor vs. Jyantilal Khandelwal

Entire O37 was questioned. The Supreme Court said that the primary public interest behind
Order 37 CPC is the quick disposition of economic litigation.
Two maxims: -
1. Justice hurried is justice buried
2. Audi alteram partem
Decree in Summary Suits
The plaintiff is designated to a decree of a sum not surpassing the amount mentioned in the plaint
including interest and cost under the following conditions:

a. If the defendant does not present himself before the court

b. If the defendant does not make an application for leave to defend
c. If the defendant has made an application for leave to defend but the same has been
dismissed by the court.

Setting aside a decree in summary suits

 Rule 4 of Order XXXVII explains the court has the power to set aside an ex-parte decree
under special circumstances in a summary suit.
 The court is entrusted to grant a stay on the execution of such decree. The defendant in
such a case should not only reveal the unique circumstances, which stopped him from
appearing, but also the facts, which would gain him leave to defend.
No
Summary Suit Regular Suit (Regular Suit)

1) In Summary Suit the defendant is not

entitled as a matter of right to defend the
In Regular (Regular Suit) Suit, a
suit. Defendant has to obtain the leave of
defendant is entitled to defend the suit as a
the Court and if he does not apply for such
matter of right and no leave to be obtained
leave within the prescribed period or if
from Court to defend.
Court refused such leave, the plaintiff gets
a decree in his favor.

2) Summary suit can be filed only for two

categories of Suits-
(1) Suit upon Bill of Exchange, Hundies,
Ordinary suit (Regular Suit) can be filed
Promissory Notes and
for any purpose, It is not restricted to any
particular category of the suits
(2) To Recover debt, Liquidated demand in
money payable by the defendant on written
Contract, and on Guarantee.

3) In case of Summary Suits, After decree the

Court may, under special circumstances,
set aside the decree, and if necessary stay
or set aside execution, and may give leave In ordinary suit (Regular Suit), the Decree
to the defendant to appear to the summons cannot be set aside by trial Court except
and to defend the suit, if it seems on the grounds of review.
reasonable to the court so to do, and on
such points as the Court thinks fit

4) In Summary suit, the defendant must prove In ordinary Suit (Regular Suit) Time
his fact Within 10 Days Limit is 30 Days for filing a written
Statement